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High Court Of Madhya Pradesh
U. N. Bhachawat, J.
CHHITU - Appellant
Versus
MATHURALAL - Respondents
Civil Revn. 110 Of 1979
Decided On : 12/14/1979
CIVIL PROCEDURE CODE - ORDER 41 RULE 3A - LIMITATION - CONDONATION OF DELAY - JURISDICTION - INHERENT POWERS - SECTION 151 - NULLITY - FUNCTUS OFFICIO - FRAUD - REMEDY - SUIT - INHERENT POWERS OF COURT - JURISDICTION TO CORRECT OWN MISTAKE - NATURAL JUSTICE - AUDI ALTERAM PARTEM - WRONG WITHOUT REMEDY - UBI JUS IBI REMEDIUM - FRAUD UPON COURT - COLLUSION - DISTINCTION - MINOR - GUARDIAN AD LITEM - NOTICE - ADVERSE ORDER - INTEREST OF MINOR - REVISION - DISMISSAL - NO ORDER AS TO COSTS.
Fact of the Case:
Plaintiff No. 6 filed a suit for cancellation of a compromise decree against the defendant. The trial court decreed the suit in favor of the plaintiffs, including Plaintiff No. 6. The defendant filed an appeal, which was barred by time. The defendant filed an application for condonation of delay along with the memorandum of appeal. The lower appellate court issued notice to the plaintiffs, including Plaintiff No. 6. Plaintiff No. 6 filed a reply to the application. The lower appellate court fixed a date for arguments on the application. Before the date of hearing, the defendant and plaintiffs Nos. 1 to 5 filed a compromise petition, seeking permission for compromise on behalf of the minor plaintiff No. 3. The lower appellate court, without notice to Plaintiff No. 6 and in his absence, accepted the compromise and allowed the appeal. Plaintiff No. 6 applied for reviving the appeal, which was allowed by the lower appellate court. The defendant filed a revision petition challenging the order of revival.
Finding of the Court:
The lower appellate court had no jurisdiction to pass the order dated 5-10-1978 disposing of the appeal, as the delay in filing the appeal was not condoned. The order dated 5-10-1978 was a nullity and non est. The lower appellate court had the jurisdiction to correct its own mistake in exercise of its inherent powers under Section 151 of the Code of Civil Procedure. Plaintiff No. 6 had no other remedy but to apply to the court under Section 151 of the Code of Civil Procedure, as he was not a party to the order/decree dated 5-10-1978 and could not adopt the remedy of an appeal or review. The impugned order is not adverse to the interest of the minor plaintiff No. 3, and therefore, it cannot be vitiated on the ground that it was passed without affording an opportunity for hearing on behalf of the minor plaintiff No. 3.
Issues: 1. Whether the lower appellate court had jurisdiction to pass the order dated 5-10-1978 disposing of the appeal, as the delay in filing the appeal was not condoned? 2. Whether the lower appellate court had the jurisdiction to correct its own mistake in exercise of its inherent powers under Section 151 of the Code of Civil Procedure? 3. Whether Plaintiff No. 6 had any other remedy but to apply to the court under Section 151 of the Code of Civil Procedure? 4. Whether the impugned order is adverse to the interest of the minor plaintiff No. 3?
Ratio Decidendi: 1. The court held that the lower appellate court had no jurisdiction to pass the order dated 5-10-1978 disposing of the appeal, as the delay in filing the appeal was not condoned. The court relied on Order 41 Rule 3A of the Code of Civil Procedure, which provides that the court shall finally decide the question of limitation before it proceeds to deal with the appeal. The court held that the appeal cannot be heard even on the question of admission much less on merits. In effect there is no appeal before the court unless the delay is condoned. 2. The court held that the lower appellate court had the jurisdiction to correct its own mistake in exercise of its inherent powers under Section 151 of the Code of Civil Procedure. The court relied on the observations of the Supreme Court in B. V. Patankar v. C. G. Sastry (AIR 1961 SC 272), where it was held that a court has jurisdiction to correct its own mistake in the exercise of its inherent powers especially in the facts and circumstances of the instant case. 3. The court held that Plaintiff No. 6 had no other remedy but to apply to the court under Section 151 of the Code of Civil Procedure. The court held that Plaintiff No. 6 was not a party to the order/decree dated 5-10-1978 and could not adopt the remedy of an appeal or review. 4. The court held that the impugned order is not adverse to the interest of the minor plaintiff No. 3, and therefore, it cannot be vitiated on the ground that it was passed without affording an opportunity for hearing on behalf of the minor plaintiff No. 3.
Final Decision: The revision petition was dismissed with no order as to costs.
( 1 ) THIS is a revision at the instance of defendant in Civil Suit No. 87-A/77 in the court of Civil Judge, Class II, Kasrawad.
( 2 ) THE facts leading to the present revision as stated are these :-The defendant in the present suit had filed a civil suit No. 54a/77 against plaintiffs Nos. 1 to 5 in the present suit in which a compromise decree was pass-ed on 28-4-1977, the plaintiff then filed the present suit for the cancellation of the compromise decree against the defendant; the suit was decreed by the trial Court vide its judgment and decree dated 28-4-1978, the defendant being aggrieved by this, filed an appeal on 16-7-1978 being Civil Regular appeal No. 40a of 1978 in the lower appellate court in which the defendants were arrayed in the same order as respondent (the appellant in the lower appellate court is referred to hereinafter as defendant and the respondent as plaintiffs); this appeal was barred by time; the defendant, had, therefore, filed an application J. A. No. 1 for condonation of delay under Section 5 of the Limitation Act, 1963 along with the memorandum of appeal; the lower appellate court had issued notice of this application to the plaintiffs; on 14-9-1978 reply of this application was filed on behalf of plaintiff No. 6; the plaintiffs nos. 2 to 5 were not served, therefore, fresh notices were ordered to be issued and the case was fixed for 6-10-1978 for reply and arguments on I. A. No. 1; on 27-9-1978 on behalf of plaintiffs Nos. 1 to 5, a compromise petition regarding the compromise between defendant and these plaintiffs with permission for compromise on behalf of minor plaintiff No. 3 was filed; but on that date as the presiding Officer was not there the Reader wrote the order sheet that it shall be placed for court order on 6-10-1978, which was the date already fixed in the appeal; on 4-10-1978, plaintiff No. 1 filed an application for deleting the name of plaintiff No. 6 from the suit as well as the appeal and accepting the compromise, which the lower appellate court directed to be placed for orders on 6-10-1978; again on 5-10-1978, the defendant filed a similar application, whereupon the case was taken up on 5-10-1978, the applications were accepted, plaintiff No. 6's name was ordered to be struck off permission for compromise was granted and in terms of the compromise the appeal was allowed. All this was done without notice to plaintiff No, 6 and in his absence. ( 3 ) THEREAFTER on 6-10-1978 the date on which the appeal was already posted vide order sheet dated 14-9-1978, plaintiff No. 6 appeared and applied for reviving the appeal which was allowed vide the impugned order dated 17-111978 of the lower appellate court and the appeal has been revived. It is against this order that the present revision has been filed.
( 4 ) LEARNED counsel for the defendant had in his argument challenged the validity of the impugned order on two grounds; namely, (i) as the appeal was already disposed of on 5-10-78 the lower appellate court had become functus officio therefore, it had no jurisdiction to pass the impugned order and (ii) that the impugned order is an ex parte order against plaintiffs Nos. 1 to 5, but as plaintiff No. 2 is minor no ex parte order could be passed against him for default in appearance of his G. A. L.
( 5 ) THE learned counsel for plaintiff No. 6 in his argument in counter submitted, that the defendant and plaintiffs Nos. 1 to 5 practised fraud on the court, by not bringing it to the notice of court that the delay in appeal was not yet condoned and obtained (sic) the court committed a mistake in passing the order dated 5 10-1978 without notice and behind the back of plaintiff No. 6. He further argued that as the delay in appeal was not condoned, there was no appeal before the lower appellate Court which it could dispose of, therefore, the order passed on 5-10-1978 was null and void and non est He argued that the court has the jurisdiction to correct its own mistake in exer
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